Moreover, the passing last month of a motion in the Northern Ireland Assembly calling upon the Executive to ‘commission an assessment of the extent of abuse and neglect in Northern Ireland’ and to liaise with authorities in the Republic to ‘ensure that all-Ireland protections for children and vulnerable adults’ suggests that the impact of these reports will extend into Northern Ireland.

Whilst Mairead Enright and Kieran Walsh have already posted their thoughts on the impact of the Murphy Commission report here and here, this post will consider Mary Raferty’s opinion piece in the Irish Times on 27 November, which drew comparison between the methods adopted to gain an accurate picture of the widespread nature of abuse and tackling organised crime.

The Ryan report was compelled to provide anonymity to some figures that it considered to be involved in the abuse and cover-up (the Christian Brothers case – Murray & Anor v. Commission to Inquire into Child Abuse & Ors [2004] IEHC 102) and has as yet resulted in no prosecutions. Indeed, whilst the matter was being debated in the Northern Ireland Assembly, Michelle McIlveen (DUP, Strangford) sponsored an amendment motion rejecting calls to establish a public inquiry on the Ryan Commission model. She explained that:

“I tabled the amendment because I remain seriously concerned that to follow the road of the Ryan inquiry would deny victims the kind of acknowledgement and justice that they most need. The lack of a focus on criminal prosecutions and the agreement to immunity from prosecution for those guilty of such abuse is the most fundamental flaw in the inquiry and not one that serves any of the victims. The Assembly should not move forward in a manner that denies natural justice and gives protection to those guilty of such crimes.”

Such complaints are familiar where any public inquiry considers criminal activity. Those allegedly involved in criminal wrongdoing will seek the protections ordinarily afforded in criminal trials and challenge the operation of the inquiry where such safeguards are not met. The inevitability of such complaints only serves to highlight the inadequacy of dealing with serious recent offences by establishing, under the Commission to Inquire Into Child Abuse Act 2000, a pseudo-transitional justice commission (the idea of “naming and shaming” being central to the process) with a remit running up to 1999. This returns the spotlight to the criminal law.

In the aftermath of the Murphy report the Irish Government has found itself under increasing pressure to amend the criminal law to ensure child protection. Raferty notes in particular how the offence of misprision of felony could have been employed against Bishop Donal O’Mahony in relation to specific evidence within the Murphy report that he was involved in covering up the abuse of children by priests within the Dublin Archdiocese. However, as she notes, misprision ‘was conveniently dropped from the statute books in 1998 when the felony laws changed. The effect was that no priest, bishop, or indeed lay person, could be charged with failing to report criminal activity of which they were aware.’

The abolition of the ancient offence of misprision from the criminal law, however, is better regarded as a necessary step in bringing Ireland into line with other common law countries. Misprision was useful to the state in the era before professional police forces as it “privatised” law enforcement by imposing a duty to report suspicions regarding criminal activity upon all individuals.

Misprision withered to the point where its existence as a common law offence in the United Kingdom was questioned in Sykes v DPP [1962] AC 528. However, Lord Goddard affirmed (at [569]) that, ‘a person is guilty of the crime if, knowing that a felony has been committed he fails to disclose his knowledge to those responsible for the preservation of the peace … within a reasonable time and having a reasonable opportunity for so doing.’ In section 1 of the Criminal Law Act 1967 the distinction between misdemeanours and felonies in English law was abolished, thereby abolishing the offence of misprision.

The affect of this abolition (mirrored in the Irish Criminal Law Act 1997) is not to remove criminal liability in this sphere in the United Kingdom but to restrict it to offences which involve active disruption of police investigations. This emphasis upon the police investigating criminal offences is reflected in Irish law. As Pease Mehigan asserted in yesterday’s Irish Times, the offence of impeding the apprehension or prosecution of an offender under section 7(2) of the Criminal Law Act 1997 should be central to the response by prosecutors to the Murphy report.

Active enforcement of such provisions can be employed to quell calls for knee-jerk law reform. Misprision remains a tempting offence for any state, enabling it to extend the bounds of criminality to individuals regarded as “networks of supporters” around criminals. Where the harms associated with criminal wrongdoing are particularly great, particularly in relation to terrorism, both the United Kingdom and Ireland retain offences similar in operation to misprision.

Under section 38B of the United Kingdom’s Terrorism Act 2000 it is an offence for an individual to fail to disclose to the police information which he knows or believes might be of material assistance in preventing another person from committing an act of terrorism or which might be of material assistance in apprehending a terrorist suspect. Similarly, under section 9 of Ireland’s Offences Against the State (Amendment) Act 1998 it is an offence for a person who holds information which she knows or believes might be of material assistance in preventing a “serious offence” or apprehending someone who had committed such an offence.

Clearly, both systems were reluctant to give up the idea of misprision. But Ireland’s definition of a “serious offence” under section 8(4) of the Offences Against the State (Amendment) Act raises questions, for it covers, ‘an offence that involves loss of human life, serious personal injury (other than injury that constitutes an offence of a sexual nature), false imprisonment or serious loss of or damage to property or a serious risk of any such loss, injury, imprisonment or damage’.

The exclusion of sexual offences is justified as such offences have no relevance to the counter-terrorism purpose of the Act, but beyond this the extreme breadth of the provision is such as to call Ireland’s rejection of misprision into question. This provision lacks the obligation upon the state to establish the link to terrorism required by comparable provisions in the United Kingdom. Moreover, the existence of such a broad offence does provide ammunition to those who would, in the aftermath of the Murphy report, push for a return of a misprision standard to the general part of Irish criminal law. Effective investigation into existing general criminal law offences will provide the clearest evidence that such archaic measures are unnecessary.